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costs agidnst an executor or administrator personally, or against the estate he
represents {Menereau y. Byeru, 12 How. 800).

b. Prodaction of books, Ac— A referee has not aathority to order the produc-
tion of books, ACf where there is no proyislon to that effect in the order of
reference (Frager v. Phelpg, 1 Code Rep. N. a 314; 3 Sand. 741). Where a
referee is ordered to take accounts, the referee^s certificate that the production
of books and papers is necessary, will be regarded as presumptiyely sufficient
to warrant an order for such production. The burden of showing that Uie
order ought not to be made, would be upon the adverse party, (lb.) Nor
has a referee the power to strike out a complaint for any de&ult of the plain-
tiff in producing papers, &c {Bonesteel y. Lynde, 8 How. 336).
e. Review of proceedings before referee pending the reference— The cooit
will not interfere on motion in a matter within the discretion of a referee be-
fore the referee has reported. The party must wait until the referee hat
made his report and then moye to set aside the report {Schemwrhom v. DeD$-
Un. 1 Code Rep. 38 ; see Langley y. Hickman, 1 Sand. 681), or appeal fi-om the
Judgment thereon. But where pending a trial before a referee he decides to
allow an amendment of the complaint, the defendant may immediately, and
pending the reference, moye the court appointing the referee, at special tern,
to reyiew such decision of the referee (Unitm Bank y. Jfott, 10 How. 114;
Biainff$ y. Baker, 6 Abb. 318); and in (Mgy y. HimUngUm, 16 Abb. 884 n$tt^
the court pending a reference, entertained a motion to adjourn the proceed-
ings before the rderea

d Report of referees.— A report of any two of the referees is yalid (3 R 8.
884, § 46). The report must state the facts found, and the conclusions of law
separately (Code, § 373, rule 33 ; 3 R S. 884, § 47 ; BaberU y. Garter, 38 Barb.
4C&). If It does not, the court will order a further report to be made, on the
application of either party, or of its own motion (Snook y. Fries, 10 Barb. 818
Pirmne y. Suydam, 8 R D. Smith, 376 ; see Church y. Erben, 4 Sand. 601
Van Steenburg y. Hoffman, 6 How. 403 ; Lakine y. Brie B. B. Go. 11 «! 41 ,
Buke y. Sherman, 18 id. 411) ; and if, for any reason, effect cannot be giyen to
inch order, then the court will set aside the report {Peek y. Torka, 14 How.
416). An opinion referring argnmentatiyely, and in a general way, to the
conclusions of fiict and law at wnich the referees arriyed, is not such a statement
of the facts found by them, and their conclusions of law thereon, as i^ contem-
plated (JftZb y. l^rai^, 18 How. 418 ; and see i>0fo y. iM;, 1 Code 54 ; Bern-
inff y. PMt, id. 131 ; Siuon y. Barrett, 3 Corns. 406). If there are issues npo»
which no eyidence is jdyen, he need not notice them in his report (Ingraiam
y. Gilbert, 30 Barb. 153 ; and to the like effect is Paittereon y. Graees, 11 Horn
91 ; Marstan y. Johnetan, 18 id. 98>

e. In order to found an objection upon the omission of the referee to find;
one way or the other, upon a particular issue of &ct, he should be specifically
requested to do so, and an exception taken to his refusal (Grant y. Morm^ &
N. Y. 838).

/. A referee to whom the issues are referred is not, unless so ordered, to
report the evidence, but the fade (Patterson' v. Graves, 11 How. 01 ; Dorr y.
J9oaxm, 5 How. 30). He need not report negatiyely what facts are not found. (Id.)

g. Until the report of a referee is signed by him and deliyered, he may altar
it as he pleases. He should not adyise either party of his decision until his
report is signed and ready for delivery (Ayrautt v. Socket, 17 How. 461 ; 8. 0.
id. 507 ; Abb. 154, n<?te ; and see Kissam y. HamiUon, 30 How. 376).

h. After a referee has signed and deliyered his report, he has no power to
alter it (Shearman y. JmUee, 33 How. 341 ; NUes y. Price^ 33 How. 478).

i. Where after a referee had deliyered his report, in which he dismissed the
complaint as to one defendant, and afterwards added ** with costs to said d^*
fendant,** such addition was on motion stricken out with costs, (id)

Digitized by


500 SEFBBBNGB. [§ 278.

a. Time for makjug report— The time for the referee to make his report
may be extended by order of the court or a Judge, or by consent of the parties.
An oral consent on the hearing to extend the time will be sufficient {LivingsUm
V. Oidney, 25 How. 1). If sixty days elapse, without any extension of the time
to file the report, and without any report being filed, either party may, before
any report is filed, notify the other and the referee of his intention to proceed
as though no reference had been ordered. If neitlier party takes any such
action before the referee has made and delivered his report, the right to dis-
regard the reference is waived (Mantles v. Myle, 26 How. 409 ; see however
iMch V. Brotherstm, 25 How. 407 ; 16 Abb. 884). Notice of trial at the circuit
is a notification of an intention lo disregard the reference (Livingston v. Oid-
nej/j 25 How. 1). If after such a notification a report is made and filed^ it will
be irregular, and may be set aside on motion. (Id.) After a report is made,
although not wiUiin the time prescribed, it cannot be disregarded, nor can the
parties proceed as if no reference had been ordered. A report made after the
time for making it has elapsed is irregular, but it is not a nullity, and can only
be got rid of by a motion to set it aside as irregular and for leave to proceed
as H no reference had been ordered (id.) ; and see Foster y. Bryan^ 16 Abb. 396 ;
86 How. 164. A referee's rejjort was reluctantly set aside, for not having been
made and delivered within sixtydays from the time the action was finally sub-
mitted (LUch V. Brothersm, 26 How. 407 ; 16 Abb. 384).

b. The delay of a referee in making and delivering his report cannot be
considered the delay of the court (Kissam v. HamiUon^ 20 How. 869).

c. The provision requiring referees to report within sixty days does not
apply to the case of a reference of a claim against an executor or administra-
tor (Godding v. Porter, 17 Abb. 874).

d. A report of a referee is not made until it is signed by the referee (Kissam
v. MimiUon;20 How. 869).

e. "Who entitled to the report— The report should be delivered to the
successful part^ ; and the other party has no right to the possession of it. If
the referee deliver Uie report to the unsuccessful party, and he refuses to file
it, the court on motion will order him to file it within a certain time ; and if
he does not, then, that the referee make a new report, and deliver same to the
successful party (Richards v. Allen, 11 N. Y. Leg. Obs. 159).

/. Amending report— A referee cannot without an order of the court
amend his report after it has been dgned and delivered to the prevailing
party (see antSy page 499, h). The referees may themselves move
to have their report sent back to them for correction (BrttUngham v. Stevens,
1 Hall, 879) When a report is sent back for correction, if the referees go be-
yond correcting the errors complained o'f on the motion to set aside the report,
and op^ the case as to other items, they are bound to hear additional testi-
mon/if oflfered (Ootdard v. GastiUon, 12 Barb. 126). See, Changing rtferee.

ff, Tho courl may order a referee to make a fUrther report ; and an order for
a rarther report Is not irregular for want of a specification of the points upon
which a report is desired (Union Bank v. Mott, 18 Abb. 247).

A. After the referee has made his report his authority ceases ; and when
after the referee had made his report an order was obtained for him to make a
supplemental report upon a matter omitted on the trial, such order was held
to be irregular (Pratt v. 8Ules,17 How. 211 ; 9 Abb. 150).

i. Where the report does not pass on all the issues referred, the court at
special term may send back the report for completion, but it will not do so
where there are exceptions to the report, but leave the appellate court to dis-
pose of the case upon the exception (Brown v. N. T. dni. R R Co.f^ How.

j. Death of defendant pending referenoa — ^The report of a referee is void
if made after the action has abated by the death of the defendant (Kissam v.
BanuUim, 20 How. 869 ; see ante, p. 186).

k. Death of plaintiff — Where, after the report of a referee in &vor of the
defendant, and before judgment is entered thereon, the plaintiff in the action

Digitized by


§ 278.] REFBRffiNTOk

dies, Judgment may be entered thereon wiihoat msking the plaint!
flentatives parties to the suit {ScrarUon t. Baxter^ 1 (^e Rep. N.
ante, p. 134).

1. Referees' fees. — A rtieree may maintain an action for his fee
sny express promise to pay ; and where there are several referees,
maintam a separate action for his fees {Hinman y. Eapgood, 1 Denio, :
referee has a lien on the report for the amount of his fees {Bbioell y
How. 105). And is not bound to deliver his report until his fees ar<
V. Sehroeppel, 3 Barb, 57).

6. The attorney in the action is not liable to the referee for his fe
V. Gray, 1 Kern. 408 ; unless he has promised to pay them (Judno
17 How. 289) ; or he has received them from the client to pay the refe
reattx v. Morris, 4 How. 245). Even in the latter case the attorney
attached for not paying over the money so received. (Id.)

e. Where the plaintiff's attorney requested the plaintiff to giv
note for the referee's fees, promising to advance to the referee such
the note was given accordingly, held that the referee could sustain
against the attorney for sucn fees on such his promise {Judtkm ^
How. 289).

d. Where the length of time spent by referees is disputed on the a
of the costs, it must be shown affirmatively by affidavit It is i
what number of days were appointed for the reference, it must be f
referee was personally present conducting the reference on each da
{8hulU V. Whitney, 17 How. 471 ; 9 Abb. 71). If by consent the te
taken before a clerk of the referee, no fees to the referee can be a1
the time employed in takmg such testimony. (Id.)

e. An oral agreement made b^ the parties to the action, in the p
the referee as to his allowance for fees, and entered by him on his i
an agreement in writing within the meaning of g 313 (PhiOnn'Y,
How. 1).

/. The referee's fees are $3 a day (§ 813). Unless by the agreeme
ing of the parties, the referees cannot charge anjrthing additional for
or for any other matter (Harris v. Bennett, not reported). Any dis]
the amount of the referees' fees may be settled by requiring the refei
the same taxed (Richmond y. ffamuton, 9 Abb. 71). Where a refen
deliver his report within sixty days after the case was finally subn
swore that both parties had consented that he might take his time
held that he was entitled to his (ecA (Foster y. Bryan, 16 Abb. 396
164 ; see Time far making report).

g. Setting aside report of referees. — Where the referee fails to
the issues in the action, or when he*has not separately found the i
sary to a disposition of all the issues, the proper remedy is a mol
aside the report ; such errors cannot be reached by an appeal from
ment (Hnlce v. Sherman, 13 How. 411).

h. A motion to set aside the report of a referee is like a motion t
a verdict, and may probably be made in like cases as a motion for a
and is governed by the like rules (see Morgan v. Bruce, 1 Code Rep.
The court will set aside the report if it appears to have been, ei
slightest de^e, affected by any influence exercised by the succes
(Yale V. Qvnnits, 4 How. 263 ; Vorlon v. Lewis, 9 id.\\ and see Eooi
gerties Turnpike Road Co. 12 id. 297 ; Van Steenburg v. Hoffman, Ifi
Acees, Transit CJo. v. Oairison, 18 How. 1). The court may also set
report as against evidence (Smith v. Schank, 18 Barb. 846) ; but a
referees, like the verdict of a jury, is, as a general rule, conclusive u
eonfiict of evidence (Waikim v. Stevens, 4 Barb. 168 ; Gamp v. Puhe
Spencer y. Uliea R R Go. id. 337; Hayes v. Symonds, 9 ib. 260; Goo
22 id. 388 ; Bak&r y. Martin, 3 m2. 634 ; and see 12 Johns. 219; 1 G
24 Wend. 15 ; 1 Cal. R 362; Pbster v. Coleman, 1 R D. Smith, 85
MeOready, 4 ui 665 ; Magette y. Hariem RROo.Sid.9B; Stuart y
How. 261; VanNesi y. Brush, 22 How. 481; IfUesY. Price, 28 :

Digitized by


682 maDBncp. [§^27$.

McnOL^. UanhaU, 25 Haw. 485; Tnain v, BnwiL.21 Haw.dS; Van AU^fms
y. lndian(woUs B, R. Go,id.Vt^\ QiuuskenbiUhY. Sile,5 Barb. 469; Dam v.
Alien, 8 Corns. 168; Bearu y. ihpt^, 10 N. Y. 93; W(Us(m ▼. CampbeU,
28 Barb. 421 ; Sinclair y. TaUmadge, 35 Barb. 602 ; Boogland y. TTi^A^, 7 Bosw.
394; — it is, therefore, like such yerdict, only to be set aside where
the finding is clearly against the wei|fht of eyidence, or where, upon the trial,
some rule of eyidence or principle of law has been yiolated (Oreen y. Brown^
3 Barb. 119 ; Doyle's Adm'n y. St. Jamei Church, 7 Wend. 178; Foster y.Gole-
man, 1 E. D. Smith, 85 ; Stuart y. laylor, 8 How. 251 ; Esehbaugh y. Syracute
Distillery Co., 27 How. 125; Bearss y. Copley, 10 N. Y. 93; Woodin y.
Vh^er, 16 Barb. 146; Brooks y. Christopher, 5 Duer, 216; BoberU v.
Carter, 28 Barb. 462). The report may be set aside where an improper meas-
tire of damages was adopted (5 Duer, 535 ; Dean y. Boeder, 1 Hilton. 420) ; or for
an unreasonable refusal to adjourn (Fbrbes y. Frary, 2 Johns. Cas. 224 ; but
see Carpenter y. Haynes, 1 Code Rep. N. B. 414 ; or for excessiye damages
(Kirfm y. Schoonmaker, 8 Barb. 647); or for admitting^improper eyidence
(;ffark y. CrandaU, 8 Barb. 612 ; see, howeyer, AUen y. Way, 3 Code R. 248 ;
VaUanae y. King, 8 Barb. 548 ; Belmont y. Coleman, 1 Bosw. 188 ; Br&wn y.
OoUe, 1 E. D. Smith, 265 ; Kennys y. Richards, 11 Barb. 812) ; but query, if the*
court will set aside a report because the amount found for the plaintiff ex-
ceeds that sUted hi his bill of particulars? (12 Wend. 834, 504 ; Bowman v.
Bairte, 8 Duer, 691). The court will not mterfere with the finding of a referee
on a question of fact, as to which there is conflicting testimony, unless the
dear weight of eyidence shows that he has erred ( Watson y. CampbeU, 28 Barb.
421), although the court differs from the referee in the result at which he
«triyed {Thompson y. Wood, 1 Hilton, 98).

a. Motion to aet aside report of referees. — ^The motion is non-enumerated
ifidmoni y. Smith, 1 Duer, 675). It should be to the court who appointed the
referees (Ooulard y. CastUlon, 12 Barb. 126) ; should be based on a certificate
or special report of the referee, not on affldayits (Belmont y. Smith, 1 Duer,
675) ; should be made promptly (Patterson y. Graves, 11 How. 91), before judg-
ment (Comstoek y. Bathbone, 1 Johns. 188).

b. Costs on settine^ aside report. — On setting aside the report of a referee
snd ordering a new trial, the costs are in the discretion of the court, and may
be ordered to abide the eyent The rule that a new trial on the ground tiiat
ttie yerdict is against the weight of eyidence can only be set aside on payment
of costs, does not apply to reports of referees ( Wentworth y. Candee, 17 How.

6. Confirmation of report— A report on the whole issue need not be con-
firmed (Benouil y. Bams, 1 Code R 125) ; but all oUier reports should be con-
firmed (Oriffing y. Slate, 5 How. 205 ; Belmont y. SmUh, 1 Duer, 675 ; Rules 32,
88; and see Bantes y. Brady, 8 How. 216"; SwiHhmU y. Curtis, 5 itl 198 ; Me-
Mahan y. AUen, 27 Barb. 885 ; 7 Abb. 1).

d. Judgment on referees' report— Where a referee reports against a plain-
tiff on account <of neglecting to appear, the judgment should be a dismissal of
the complaint, not a judgment for the defendant as on the merits (Salter y.
^Jdaieolm, 1 Duer, 596).

e. Where the referee reports in fiiyor of the pluntiff, but states that before
a final judgment can be entered an accounting must be had, whereupon the
cause is ordered back to the referee to take such accounting, judgment cannot
be entered until such accounting is had (MoMahon y. AUen, 27 Barb: 385).

/. Judgment upon the report of a referee is to be entered in form, as if pro-
nounced by the court, before one of its justices, at special term (Hancock v.
Hancock, ^ N. Y. 568).

g. If the successful party n^lects or refuses to enter judgment, the other
pMTty, after requiring him to (k> so, may obtain an order directing him to file
the report, and enter up judgment thereon ; and in default thereof, giying the
plaintiff leaye so to do without costs (Richmond y. Hamilton, 9 Abb. 71).

h. Notioeoft^ judgment— Notice in writing of the entry of the judg-
ment and a copy^'of the '.report should be sesyed on the judgment debtor
(§268; /Sitorwi^y./<m«,13How. 428; Rule 82, and note to § 8^, pewQ.

Digitized by


$S78] —■■liiw MiS

0, 4vPmI iDiiaQMrri jbim ftam i wStfBB mnt «• taport of refcfiMs.— The
oovirtGMiiMHonmolionfletaadeaseiTOiieoiMajndgnent cnt^^ on tlie re-
port oC« referee {Dana y. Ifouv, 3 Kern. 806). Tae only laode of reyiewing the
mlings of the referee COronk y. {JatMtd, 81 Barb. 171 except as wnie, pp. 490, e,
601, p, or his report is W aa appeal from the judgBieDt esiered thereon iHaiifki
T. PnwA^ Code Bep. 94 ; liggeU v. MoU, 3 »». 5 ; Nmet y. ifop^ ifi^^. Im. Co.
^.192; jRjjpwv. 0<mkUna,ib.2»; Grist v. Dry Dock Bauk, ib. 118,142; Enat
V. 37k<wia«, 6 How. 164 ; Waisan y. Scriven, 7 1*. 11 ; Stws y. Thomas, 1 Ckxle
Rep. N. 8. 67 ; Donahue y. Chapman^ id. 138) ; whether the findmg be on a
onestion of fkct or law (CheesOroygh y. Agate, 7 Abb. 32 ; 26 Barb. 603 ; see
ihnoQif y. OonoUy, 16 How. 224). For the purposes of an appeal, exceptions
mtist be eeryed and a case made {Johnson y. IVhitloek, 8 Kern! 3^ ; see note
to § 206, and Rules 84, 86, 36, 37). The appeal must be taken within thirty
days after notice of the judgment (§ 832 ; Stariiig y. Jones, 13 How. 423) ; and
the time to appeal cannot be extended directly (§ 406) ; nor should it be indi-
lectly exteaded, as by setting aside a regular Judgment for the purpose {Hum'
phrty ▼. Ohamberlam, 1 Kern. 274 ; Marston y. Johnson, 13 How. 93). See in
Dole tog 382, :poi<.

b. Stay of prooeediiigB on appeal.— The appeal fh>m the Judnnent does
not stay the proceedings on the judflment. To stay the prooeedmgs on the
lodgment, security must be giyen. But no security need be giyen unless a
Hay of proceedings is required (see § 846, and note thereto).

& Referees' findings.— A referee is required only to find such facts as enter
hito and form the basis of his decision. Facts not found are negatiyed by
implication {Nelson y. IngersoU, 27 B.ow.1). An appellant cannot claim as
error the omission of a referee or a Judge trjing an issue without a jury, to pass
upon a material &ct, he must show amrmatiyely that such referee or judge
dedded erroneously on such fiwjt {Heroy v. Kerr, 21 How. 409 ; The People y.
Albright, 14 Abb. 3(i5). The remedy for such an omission is by motion to
have the finding referred back for correction. {Id.)

d, A referee cannot make new findings either of law or fact after he has de-
liyered his report {Nelson y. TngersoU, 27 How. 1).

See, Case on appeal to general term.

e. Case on appeal to general term, what to contain.— On an appeal from a
Judgment for plaintifi' rendered by the court without a jury [or by a referee]
the case must ^ow not only the facts on which the grounds of defendant's
liability are based but also the facts on which the. amount for which judg-
ment was entered depends {Watson y. Barker, 16 Abb. 208).

/. On appeals from judgments in actions tried by the court or a referee, if the
case contain no Qndings of fact it is the practice of the general term of the
first district to dismiss the appeal, ' unless the parties consent, before the
appeal is submitted, to haye the case sent back for correction {Matthews y.
The Mayor of N. Y., 14 Abb. 209).

g. Where the case omitted the referee's findings, the general term suspended
the argument that they might be supplied ( Watson y. Barker, 16 Abb. 203) ;
fbr such a defect the court of appeals dismissed an appeal (see Rissel y. Hamlin,
13 Abb. 23; 20 N. Y. 519).

h. Or appeal fVom a judgment on the report of a referee, where it appeared
that the referee wrote an opinion which was not inserted in the case, the
aigument of the appeal was postponed to haye the opinion brought before the
court {Warren y. Warren, 22 How, 142).

4. On an appeal from a judgment entered on the report of a referee, the appel-
lant may be heard on exceptions taken to the referee's conclusions of law up-
on the acts found, although the printed case does not contain any of the evi-
dence. But in such case tie cannot be heard upon his exceptions to the find-
ings of fletct. It must be assumed that they were found upon competent sasA
sufficient eyidence {Frost y. BmUh, 7 Bosw. 106) ; uod wheneyer the appellant
desires to reyiew aifej the conclusicM&s of jlaw of Ihe referee from the facts
fenn4 hy him, he can do -so without ineertlng tlie (testimony in his case {fkr-
guson y. HamiUon. 85 Barb. 427 ; see Bissel y. Pearse, 21 flow. lM)i

Digitized by


504 RKiniNom [§373.

a. The findinss of the referee, of fbct and of law^mast be inaertedin the caae
or the court will not review the Judgment (Bogen y. Beard^ 20 How. d8 ; 288) ;
and the finding of the referee muBt be inserted in the caae separate and apart
from thejudgment roll {BisselY. Pearm^ 21 How. 184; and see Fsrguson y.
^mO^ 85 Barb. 427 ; BiuelY. HdnMin, 20 N. T. 510 ; 18 Abb. 28).

b. Case how settled.— Where on appeal from the decision of three referees
the case was settled by two in the absence of the third, and without notice to
him, held irregular, aiid that the case must be resettled (Fielden y. Lahens, 14
Abb. 48).

e, A Inandamus is the proper remedy to compel a referee to settle a case (see
The Peo^ y. Baker, 14 Abb. 19 ; 85 Barb. 105).

d. Date of issae on appeal— On an appeal from a iudfipnent on a report of
a referee, the date of the issue on the general term calenaar, must be the day
of fllmg the report (Gould y. Cha/pin, 5 How. 858).

e. ProoeedingB on appeal— Where (here is no exception to a referee's report
the court cannot on appeal give any relief as to matters of law {TyUr/y. wmu,
88 Barb. 828) ; a wrong resmt upon undisputed evidence is an error of law
(Brcwn v. Penfleld, 24 How. 64). To raise a question of law an excention
must be taken and set forth in the case {IngersoU v. postwick, 22 N. \. 4Sh\

f. SernbUy where the facts are correctly found, the court may disregard Uie
conclusions of law if erroneous, and direct the entry of such judgment upon
the facts found as may be proper {Hannay v. Hamuiy, 8 E. D. Smith, ^ ;
and see Oriffin v. Ma/rquardt, 17 K Y. 28 ; Edrrumston v. McLovd, 16 N.

g. An exception taken on a trial before a referee, although inserted in the
case, but not argued nor mentioned on the points, will be regarded as aban-
doned (Flanders v. Orolius^ 1 Duer, 209 ; Cumings v. Morris, 3 Bosw. 560 ; and
see Brotm v. Cdie, 1 K D. Smith. 269).

h. On a trial before a referee, improper evidence on the subject of damages
was offered and objected to ; but was taken by the referee subject to the ob-
jection, and was afterwards considered by him in awarding damages. Excep-
tions were filed to his decision, and one of them was that the decision was
" contrary to the law and evidence," but no specific objection was taken to
the rule of damages adopted ; held on appeal the court would review the de-
cision of the referee in respect to the measure of damages adopted by him
(Dean v. Boesler, 1 HiltOn, 420).

i. The general conclusion of the referee is to be construed as involving a
finding upon all the material questions, though such a finding be not ex-
pressed in terms (Grant v. Morse, 22 N. Y. 823).

j. Where there is evidence sufficient to susUun a report, but the fact estab-
lished by such evidence is not expressly found in the report, and there is no
finding of such &ct, the court in support of the judgment will persume the
&ct was found in accordance with the evidence (Sinelair v. TaUmadge, 85
Barb. 602).

k. Where a finding on a question of fact is clearly aeainst evidence a new
trial will be granted (Thompson v. Menek, 22 How. 481).

L A judgment on the report of a wferee will not be reversed for the im-
proper admission of testimony, when the court can see that the testimony so
admitted did not infiuence the result (Lowery v. Steward, 8 Bosw. 506).

m. Where evidence bearing directly on the question in is^ue has been erro-

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